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Dixon v. Bellard

United States District Court, N.D. Texas, Amarillo Division

December 18, 2017

RACHEL DIXON, Plaintiff,
v.
EMORY DILWORTH BELLARD III, Defendant.

          MEMORANDUM OPINION AND ORDER GRANTING THE PLANTIFF'S MOTION FOR ENTRY OF DEFAULT JUDGEMENT AND GRANTING IN PART PLAINTIFF'S MOTION FOR ATTORNEYS' FEES

          MARY LOU ROBINSON SENIOR UNITED STATES DISTRICT JUDGE

         Before the Court is Plaintiffs Motion for Default Judgment and Motion for Attorney's [sic] Fees, filed on July 28, 2017. The motion for default judgment is GRANTED. The motion for attorneys' fees is GRANTED IN PART.

         The court having entered default judgment on behalf of Plaintiff, now addresses Plaintiffs motion for attorneys' fees and expenses.

         Jurisdiction and Venue

         This case was filed under 28 U.S.C. § 1332(a)(1) because of the diversity of citizenship that exists between Plaintiff, a citizen of Massachusetts, and Defendant, a citizen of Texas, and the fact that the amount in controversy exceeds $75, 000. Venue is proper under 28 U.S.C. § 1391(b)(1) because the Defendant resides in McLean, Texas, which is within the Amarillo Division of the Northern District of Texas.

         Procedural Background

         The original complaint was filed on June 29, 2017. The Defendant was served by personal service on June 30, 2017. Defendant has not answered or otherwise appeared in this case. The Plaintiff then moved for default judgment on July 28, 2017, Document 7, due to defendant's failure to answer timely within the requisite twenty-one (21) days. See Fed. R. Civ. P. (12)(a)(1)(A)(i); 55(a). That motion is granted.

         Factual Background

         Plaintiff and Defendant were divorced in Florida. Pursuant to their divorce, the parties entered into a series of agreements, separate and apart from the divorce decree, which the Plaintiff now seeks to enforce.

         The first agreement, entitled the Support Agreement, is a contractual agreement between the Plaintiff and Defendant, in which the Defendant agreed to pay the Plaintiff $3, 000 monthly for ten (10) years. The parties then orally altered that Support Agreement, entitled the Amendment. The "Amendment" reduced the Defendant's monthly obligations by $250 in exchange for the Defendant making monthly payments on a mortgage. The Defendant's obligations on the "Amendment" were terminated in bankruptcy. The parties entered into yet another agreement wherein it is alleged that the Defendant agreed to pay the Plaintiff $2, 322 to compensate her for the amount of taxes she paid to the Internal Revenue Service (IRS). The Plaintiff sued to recoup her payment of taxes under a theory of breach of contract or, in the alternative, unjust enrichment.

         Plaintiff alleges Defendant breached the Support Agreement during the March 2014 billing period. Plaintiff also alleges that Defendant has not reimbursed her for the $2, 322 she paid to the IRS. As of July 2017, the past due amounts owed to the Plaintiff by the Defendant were $119, 599.91 on the Support Agreement, excluding pre-judgment interest, plus the $2, 322 in paid taxes. With pre-judgment interest, as set by the Chief Financial Officer of the State of Florida, the principal amount and interest due on the Support Agreement through July 24, 2017 was $127, 919.60 and continues to grow. See Fla. Stat. § 55.03. This figure does not include the claim of recoupment for paid taxes, in the amount of $2, 322.

         After the divorce and a failed business venture, Defendant moved from Florida to McLean, Texas. Plaintiff is now a citizen of Massachusetts. Defendant declared bankruptcy in the case styled In re Emory Dilworth Bellard III, Case No. 15-20310-rlj7, in the United States Bankruptcy Court for the Northern District of Texas, Amarillo Division. The Plaintiffs attorneys are now seeking their fees for both the bankruptcy litigation and this lawsuit, pursuant to permissive procedure under Florida law. The Plaintiff seeks $121, 921.91, plus interest, in liquidated damages, claiming she is entitled to that amount under Texas and Florida law. According to page 10 of Plaintiffs Supplemental Brief per Court Order, the attorneys seek $51, 309.90 in fees and expenses, $34, 614.40 of which relates to the bankruptcy proceedings, $16, 695.50 of which relate to the current proceeding.

         Standards for Awarding Attorneys' Fees

         The Support Agreement is an agreement for monthly payments separate from, but in connection with, a proceeding for dissolution of marriage governed by Florida law. Plaintiff is entitled to reasonable attorneys' fees and costs under Florida law. See Fla. Stat. § 61.16. The Tax-Reimbursement Agreement is a claim to recover damages for Defendant's breach of an agreement with Plaintiff. As such, Plaintiff is entitled to her reasonable and necessary attorneys' fees and expenses. See Tex. Civ. Prac. & Rem. Code ยง 38.001. Thus, all claims brought by Plaintiff entitle her to attorneys' fees in this case. nature and length of the professional ...


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